Justice Committee on May 16th, 2017

[Rob Nicholson, Conservative, Niagara Falls, ON]

Is it lower than the $65 to $80 they're talking about in Nova Scotia?

[Antoine Aylwin]

We don't have hourly rates. As Mr. Aucoin mentioned, if you go into a preliminary inquiry—

it's actually a bail hearing—

for a Quebec lawyer, it's $150. For an Ontario lawyer, it's $218. For a B.C. lawyer, it's $250. You see it's 40% more in B.C. for the same kind of work, and there are many examples like that.

I'll give you a divorce proceeding with mesure accessoire. In Quebec it would be $850. In Ontario it would be $3,000.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Let me just get straight the $800 on the divorce. Is that an uncontested divorce? You said there's no hourly rate on that. You can have divorces that go on forever with all the fighting.

[Antoine Aylwin]

I don't want to make a mistake. I could come back to give you the exact answer.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much for all your testimony.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Boissonnault, it's your turn.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Chair.

Thank you, Mr. Aucoin, for your participation today and your presentation.

As you know, francophones living in minority communities have long faced challenges, if not barriers, when it comes to access to justice.

Could you briefly explain the personal toll on a francophone, an Acadian, or a Canadian in a minority language community of not being able to access the justice system in their mother tongue?

Could you tell us the personal cost to a Canadian of not having access to justice in their mother tongue?

[Réjean Aucoin]

You know, a former lawyer and now retired judge told me something 25 years ago, back when I was beginning my practice. He was anglophone and would come to my small town once a month. He admitted to me that, in many cases, his clients ended up pleading guilty to crimes because it was simpler and quicker than requesting a trial in French. Intimidated by the thought of an English-language trial, some of his clients preferred to plead guilty and be done with it.

I can tell you that, if I were to request a trial in French today, it would still be difficult, even with the decision in Jordan. A few more French-speaking judges have recently been appointed by the province. In the past, however, it was common to have to wait a few years for a trial to be held or to have at least one extra step automatically imposed because of the time it took to find a francophone judge before a trial date could be set. Proceedings were often delayed because the francophone judge came to town only once every three or four months. In my region, we had access to a single francophone judge, who came from Halifax or southwest Nova Scotia.

It's difficult to calculate the monetary impact, but I think the situation contributes to a loss of identity. People aren't proud of their identity; they have to make a special request in order to be able to speak their language in dealing with Nova Scotia's justice system.

I told you what the situation was like during my first 15 years in practice. I was actually the first lawyer to request French-language services on Cape Breton Island. The first time I sent the court a letter to request a French-language trial, the clerk called me to ask what the letter said. She told me that I had to send her the letter in English; I responded that my client was francophone and was not paying me to write a letter in English. She then asked whether I could at least tell her what the letter said, which I agreed to do.

Nova Scotia has made a lot of progress since then. Training has been made available, and bilingual clerks have been hired. There is still a long way to go, though.

Overall, the effect this has on Acadians is that they are afraid to ask for services in French.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

So it contributes to a loss of identity and pride.

We are gearing up to celebrate the Canadian Francophone Games in Moncton and Dieppe. The slogan chosen for the games is “Right Fiers”, or right proud in English.

Listening to you, however, I am realizing that people are not “right proud” to ask for legal services in French. They think they are more likely to be found guilty and to experience long delays if they proceed in French. They worry that it will take a greater toll financially and personally.

[Réjean Aucoin]

It's even worse than that. In Halifax and other places, people have gone to court and requested a trial in French only to be told by the clerk that there was no francophone judge, which was completely untrue. The clerks might not have known that there were francophone judges. That happened a few years ago. Things might be different now, at least I hope so.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Aucoin.

This is clearly a fundamental issue for the development of minority language communities.

My next question is for Mr. Aylwin, from the Barreau du Québec.

Immigration and criminal matters now involve greater complexity.

In your system, are there people who face access to justice barriers not only because of low income, but also because of intersectionality, in that they are members of the indigenous or LGBTQ2 community, for instance?

Are you able to help these people, or do you not have enough resources?

[Antoine Aylwin]

I would say yes, in both cases. Some resources are not available to certain groups of people, especially in immigration cases, where language barriers exist. For example, a clinic with little resources cannot afford to advertise its services in 18 different languages. It has to stick to English and French.

What's more, services adapted to these people's realities do not necessarily exist. I talked about specialized clinics for racialized or marginalized client groups. Those cases require people who understand the reality these individuals face, not just people who can deliver the service, particularly when dealing with refugees. In that sense, then, I would say that we don't really have those resources.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Ms. Chamagne, I'm going to come back to you during the second round.

Mr. Aylwin, you called for greater transparency around legal aid transfers, in Quebec.

Could the federal government make other policy changes to ensure better access to legal aid in Quebec?

If more funding were available, what three priorities would you spend the money on?

[Antoine Aylwin]

That's a great question.

I certainly won't say that the federal government can't provide more support, but I don't want to alienate my colleagues in Quebec who are responsible for legal aid, either. Being mindful of both jurisdictions, I will say that transparency isn't all that matters; the federal government's involvement in legal aid matters as well.

The term “by design” comes to mind straightaway. Immigration and criminal legislation is created, and that legislation creates needs.

I sit before the Standing Committee on Justice and Human Rights, so I don't think it will come as a shock to anyone when I say that the Criminal Code needs to be overhauled. Introducing complicated legislation creates the need for more legal aid. What you are doing at one end you are paying for at the other.

Fundamentally, right from the start, the legislation needs to be simpler and more accessible to the public.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Would you mind listing your three priorities for new funding?

That would be much appreciated.

[Antoine Aylwin]

I am going to write that down.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

You can discuss it with your colleagues. You don't have to answer on the spot. Take a bit more time to think about it.

[Antoine Aylwin]

Given that I must write to the clerk for Mr. Nicholson's question, I'll take the opportunity to add things.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Perfect. Thank you.

[Antoine Aylwin]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Aylwin.

Thank you, Mr. Boissonnault.

We're going to go to Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Mr. Chair.

Monsieur Aylwin, I think you made a comment during your response to Mr. Nicholson about linking the responsibility for legal aid to the level of government that has made the legislation. Can you just repeat what you said there?

[Antoine Aylwin]

Yes. It goes in conjunction with what I just said. The need for legal aid comes with the legislation that sets the obligations of a citizen, whether criminal, immigration, etc. Facing the government's decision to adopt a certain piece of legislation, a citizen has a need for legal aid. That's how I make the connection between the fact that we need to regulate, to set the rules of society—that's what you are compelled to do every day—and the fact that when we do that, we have to take into consideration that each piece of legislation we put in place will impact citizens, some more than others. The need for legal aid stems from that legislation.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Perfect. Thank you.

That brings me to you, Ms. Chamagne, because in your testimony you underline the fact that there is no legal aid for your clients.

The last time I checked, the Immigration and Refugee Protection Act, and all the regulations made under it, was a federal statute, and at the board and the refugee protection division, all were appointed by the federal government.

In light of Monsieur Aylwin's comments, can you provide your own commentary on that, and some recommendations that this committee should be making to the federal government?

[Julie Chamagne]

Yes, I think that's absolutely.... Mr. Aylwin was talking about the recent complexities, in the past couple of years, with regard to immigration legislation and the intersectionalities. If, on the one hand, you have mandatory minimums of six months imposed and, on the other hand, you deny permanent residents the right to go to the immigration appeal division—by one day, actually—then you're catching so many more people in those intersectionalities and, as we were saying, dividing families. It has really grave consequences.

We are a little, ragtag not-for-profit. Every month or two, we get our volunteer lawyers on board, train them up, and go in front of the Immigration and Refugee Board by video conference. It's a very complex area of the law. It's always changing, and there are so many different dimensions and factors.

Obviously, one recommendation would be for the federal government to fund legal aid for immigration and refugee matters and, as I was saying, acknowledge the role that community organizations can play when we are dealing with vulnerable and marginalized groups. The specialized clinics you were talking about are really important, not just for eligibility, but for access: linguistic access, cultural access, and comfort.